United States District Court, N.D. Texas, Amarillo Division
MEMORANDUM OPINION AND ORDER GRANTING THE
PLANTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGEMENT AND
GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS'
LOU ROBINSON SENIOR UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Motion for Default Judgment and
Motion for Attorney's [sic] Fees, filed on July 28,
2017. The motion for default judgment is GRANTED. The motion
for attorneys' fees is GRANTED IN PART.
court having entered default judgment on behalf of Plaintiff,
now addresses Plaintiffs motion for attorneys' fees and
case was filed under 28 U.S.C. § 1332(a)(1) because of
the diversity of citizenship that exists between Plaintiff, a
citizen of Massachusetts, and Defendant, a citizen of Texas,
and the fact that the amount in controversy exceeds $75, 000.
Venue is proper under 28 U.S.C. § 1391(b)(1) because the
Defendant resides in McLean, Texas, which is within the
Amarillo Division of the Northern District of Texas.
original complaint was filed on June 29, 2017. The Defendant
was served by personal service on June 30, 2017. Defendant
has not answered or otherwise appeared in this case. The
Plaintiff then moved for default judgment on July 28, 2017,
Document 7, due to defendant's failure to answer timely
within the requisite twenty-one (21) days. See Fed.
R. Civ. P. (12)(a)(1)(A)(i); 55(a). That motion is granted.
and Defendant were divorced in Florida. Pursuant to their
divorce, the parties entered into a series of agreements,
separate and apart from the divorce decree, which the
Plaintiff now seeks to enforce.
first agreement, entitled the Support Agreement, is a
contractual agreement between the Plaintiff and Defendant, in
which the Defendant agreed to pay the Plaintiff $3, 000
monthly for ten (10) years. The parties then orally altered
that Support Agreement, entitled the Amendment. The
"Amendment" reduced the Defendant's monthly
obligations by $250 in exchange for the Defendant making
monthly payments on a mortgage. The Defendant's
obligations on the "Amendment" were terminated in
bankruptcy. The parties entered into yet another agreement
wherein it is alleged that the Defendant agreed to pay the
Plaintiff $2, 322 to compensate her for the amount of taxes
she paid to the Internal Revenue Service (IRS). The Plaintiff
sued to recoup her payment of taxes under a theory of breach
of contract or, in the alternative, unjust enrichment.
alleges Defendant breached the Support Agreement during the
March 2014 billing period. Plaintiff also alleges that
Defendant has not reimbursed her for the $2, 322 she paid to
the IRS. As of July 2017, the past due amounts owed to the
Plaintiff by the Defendant were $119, 599.91 on the Support
Agreement, excluding pre-judgment interest, plus the $2, 322
in paid taxes. With pre-judgment interest, as set by the
Chief Financial Officer of the State of Florida, the
principal amount and interest due on the Support Agreement
through July 24, 2017 was $127, 919.60 and continues to grow.
See Fla. Stat. § 55.03. This figure does not
include the claim of recoupment for paid taxes, in the amount
of $2, 322.
the divorce and a failed business venture, Defendant moved
from Florida to McLean, Texas. Plaintiff is now a citizen of
Massachusetts. Defendant declared bankruptcy in the case
styled In re Emory Dilworth Bellard III, Case No.
15-20310-rlj7, in the United States Bankruptcy Court for the
Northern District of Texas, Amarillo Division. The Plaintiffs
attorneys are now seeking their fees for both the
bankruptcy litigation and this lawsuit, pursuant to
permissive procedure under Florida law. The Plaintiff seeks
$121, 921.91, plus interest, in liquidated damages, claiming
she is entitled to that amount under Texas and Florida law.
According to page 10 of Plaintiffs Supplemental Brief per
Court Order, the attorneys seek $51, 309.90 in fees and
expenses, $34, 614.40 of which relates to the bankruptcy
proceedings, $16, 695.50 of which relate to the current
for Awarding Attorneys' Fees
Support Agreement is an agreement for monthly payments
separate from, but in connection with, a proceeding for
dissolution of marriage governed by Florida law. Plaintiff is
entitled to reasonable attorneys' fees and costs under
Florida law. See Fla. Stat. § 61.16. The
Tax-Reimbursement Agreement is a claim to recover damages for
Defendant's breach of an agreement with Plaintiff. As
such, Plaintiff is entitled to her reasonable and necessary
attorneys' fees and expenses. See Tex. Civ.
Prac. & Rem. Code § 38.001. Thus, all claims brought
by Plaintiff entitle her to attorneys' fees in this case.
nature and length of the professional ...